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Big Content would like to outlaw things no one has even thought of yet

Fair use, meet your successor: "customary historic use."

The EFF's Deeplinks section has a pretty alarming post about the RIAA and MPAA's attempts to freeze the progress of consumer electronics technology and then start turning back the clock on all of us. Fair use, meet your successor: "customary historic use."

The post points to broadcast flag draft legislation sponsored by Senator Gordon Smith (R-Ore.) that contains provisions which appear to limit digital broadcast media reception devices to "customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law and that prevents redistribution of copyrighted content over digital networks." In other words, if it does anything heretofore unheard of with the digital content that it receives, then it's illegal. And if it does anything "customary" that could also possibly lead to unauthorized redistribution, then it's also illegal. So all the bases are covered!

Can it really be that bad? We already knew that the proposed HD radio provisions are just awful and absurdly draconian, but can Big Content really be trying to put a blanket freeze on innovation and outlaw any possible novel use at all of copyrighted digital broadcast content? I downloaded the PDF and read through it, and it does indeed look that way. There are a few relevant sections, so let's take a look at them.

Here's the first major section in which the phrase "customary historic use" is used:

(b) permit customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law;

(c) not interfere with the deployment and spread of digital audio broadcasting to the maximum extent possible; and,

(d) to the extent that such regulations cover devices, cover only devices that are capable, without any hardware alterations or additions, of receiving digital audio signals when such devices are sold by a manufacturer.

(e) not interfere with the monitoring of or gaining access to musical works contained in broadcasts by performing rights organizations for the purpose of collecting or distributing royalties.

This sounds vaguely ominous, but not truly earth-shattering, mostly because it's phrased positively. Unfortunately, by the time you're done with the document you understand that it's worse than it looks at first.

At issue in the legislation are two types of implementation-agnostic "technologies": 1) a "broadcast flag" technology that's embedded in the digital signal by the sender and that tells the receiver what it can and cannot do with the digital content; and 2) a "secure moving technology" that the draft legislation defines as follows:

(b) "Secure Moving Technology" is a technology that permits content covered by the Broadcast Flag to be transferred from a broadcast receiver to another device for rendering in accordance with customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law and that prevents redistribution of copyrighted content over digital networks."

There's the nub of it. The broadcast flag alone isn't enough, because what happens when you want to actually listen to the audio that the device has received? Unless you've got headphones attached directly to your digital radio, you're going to want to move the signal from the digital radio to a stereo receiver (for "rendering" as the draft puts it), even if you're not necessarily planning on ripping the music and uploading it to eDonkey. This where the "secure moving technology" kicks in.

The "secure moving technology" ensures that whatever you do with the signal that leaves the digital broadcast receiver, it definitely won't be anything you can't already do right now. Furthermore, even some things that you can currently do will be outlawed if those things could facilitate piracy. This probably means that such devices won't have much in the way of hi-fi analog outs.

After you read the above definition of "secure moving technology" and then go further back and look at the first section that I quoted above, that first "customary historic use" passage starts to make more sense and to look more insidious. From reading the whole draft, it appears that the "customary historic use" stipulation governs playback on any device, whether it's an attached device or the receiver itself. The broadcast flag is embedded in the signal like a special tag that defines the content's terms of use, while the secure moving technology acts as a sort of DRM wrapper/sandbox for the content that ensures that any (compliant) playback device not only respects the restrictions dictated by the broadcast flag but also does absolutely nothing novel or unexpected with the content that the broadcast flag's terms did not or could not anticipate.

So, if you were planning to launch a startup and make millions off the coming digital broadcast media revolution by inventing the next iPod or by combining digital radio with Web 2.0 and VoIP and Skype and RSS and WiFi mesh networks, then forget about it. When digital broadcast nirvana finally arrives, the only people who'll be legally authorized to make money off of music and movies are the middlemen at the RIAA and the MPAA.

But I hate to end a post on a sour note, so here's a thought to cheer you up. This "customary historic use" thing reminds me of something I once read in a history of Japan that I picked up on sale at Borders. (I'd give the title, but I'm not at home so I don't have the book handy. It wasn't very good anyway.) At the height of their cultural power, the samurai were authorized to kill peasants for an insane number of reasons, including "acting in an other than expected manner." So look on the bright side: at least we don't live in feudal Japan... yet.